Radhe vs State Of Chhattisgarh

State of Chhattisgarh ...Respondent

JUDGMENT

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

2. Challenge in this appeal is to the judgment of a Division

Bench of the Chhattisgarh High Court dismissing the appeal

filed by the appellant (hereinafter referred to as the `accused').

3. Challenge before the High Court was to the judgment of

the learned Additional Sessions Judge, Manendragarh. The

trial Court had found the appellant guilty of offence

punishable under Section 302 of the Indian Penal Code, 1860

(in short the `IPC') but found the co-accused, namely, Kashi

and Dev Kumar to be not guilty. The appellant was sentenced

to undergo RI for life and fine with default stipulation.

4. Prosecution version as unfolded during trial is as follows:

On 10.11.1997 Gyan Singh (hereinafter referred to as the

`deceased') went to Ramkhilawan's house for collecting kanda

(eatable bulb). When he did not come back till evening, his

father Heeralal went in search of the deceased to the house of

Ramkhilawan in the evening at around 7.00 p.m. Heeralal

along with Ramkhilawan and his son Gyan Singh were

returning to his house. On the way, when they reached near

the house of Kashi, Kashi started scolding Ramkhilawan, who

was refrained from doing so. Therefore, a quarrel erupted.

Appellant who was carrying pharsa and Kashi a lathi started

2 beating. Appellant gave a pharsa blow on the leg of the

deceased. The leg was cut and turned into two pieces. Gyan

Singh fell down, thereafter Radhe chopped his other leg and

assaulted Gyan Singh with pharsa on his thigh and other

parts of the body. Heeralal came to rescue him. Dev Kumar

assaulted him with a lathi on his head and also gave a blow

on his left shoulder. Heeralal fell down. When Ramkhilawan

intervened, he was assaulted by Dev Kumar. In the meantime,

Beerbali, who is son of Ramkhilawan came there. He was also

beaten by Radhe with pharsa. Kashi assaulted Ramkhilawan

with a club. Gyan Singh instantaneously died at the spot and

others were injured. Accused appellant and his associates

Kashi and Dev Kumar fled away from the place of occurrence.

Heeralal gave intimation and lodged First Information

Report. Both the documents were recorded by Arjun Ram,

Assistant Sub Inspector, Head Constable Jagsai conducted

inquest, prepared report and forwarded the dead body of Gyan

Singh for autopsy to Community Health Centre,

Manendragarh. He collected blood stained and plain earth

3 from the spot. Dr. S.K. Chainpuria conducted autopsy. On

examination, he found nine injuries on the body of deceased

and according to his opinion, the cause of death was syncope

due to shock and external hemorrhage caused by multiple

injuries. All the injuries found on the body of Gyan Singh were

caused by hard and/or sharp objects except one which was

found to be abrasion and present below left knee. Death was

homicidal in nature. He prepared autopsy report and

describing all the injuries found on the body of the deceased

forwarded the report to the concerned police station. Injured

Beerbali, Ramkhilawan and Heeralal were also sent for

medical examination. On medical examination, it was found

that they have sustained various injuries. On the

memorandum statement of accused Kashi one club and one

pharsa were recovered from the appellant and seized. From

Dev kumar one club was seized. After post mortem

examination, the clothes found on the body of the deceased

were also collected. The statements of witnesses were

recorded. The seized pharsa, clothes and earth were sent for

chemical examination and on examination stained earth,

4 pharsa and clothes of Gyan Singh were found to be stained

with blood.

After completion of investigation, the charge sheet was

filed in the Court of Additional Chief Judicial Magistrate,

Manendragarh, who committed the case to the Court of

Sessions for trial. Charges were framed against the appellant

and co-accused. The accused-appellant pleaded innocence

and false implication.

5. Before the High Court the main stand was that the

assault, if any done by the appellant was in exercise of right of

private defence and, therefore, conviction was not called for.

The learned counsel for the respondent on the other hand

supported the judgment of the trial Court. The High Court did

not accept appellant's plea and dismissed the appeal. Stands

taken before the High Court were reiterated in this appeal.

6. A plea of right of private defence cannot be based on

surmises and speculation. While considering whether the right

5 of private defence is available to an accused, it is not relevant

whether he may have a chance to inflict severe and mortal

injury on the aggressor. In order to find whether the right of

private defence is available to an accused, the entire incident

must be examined with care and viewed in its proper setting.

Section 97 IPC deals with the subject-matter of right of private

defence. The plea of right comprises the body or property (i) of

the person exercising the right; or (ii) of any other person; and

the right may be exercised in the case of any offence against

the body, and in the case of offences of theft, robbery, mischief

or criminal trespass, and attempts at such offences in relation

to property. Section 99 lays down the limits of the right of

private defence. Sections 96 and 98 give a right of private

defence against certain offences and acts. The right given

under Sections 96 to 98 and 100 to 106 IPC is controlled by

Section 99. To claim a right of private defence extending to

voluntary causing of death, the accused must show that there

were circumstances giving rise to reasonable grounds for

apprehending that either death or grievous hurt would be

caused to him. The burden is on the accused to show that he

6 had a right of private defence which extended to causing of

death. Sections 100 and 101, IPC define the limit and extent

of right of private defence.

7. Sections 102 and 105, IPC deal with commencement and

continuance of the right of private defence of body and

property respectively. The right commences, as soon as a

reasonable apprehension of danger to the body arises from an

attempt, or threat, or commit the offence, although the offence

may not have been committed but not until that there is that

reasonable apprehension. The right lasts so long as the

reasonable apprehension of the danger to the body continues.

In Jai Dev v. State of Punjab (AIR 1963 SC 612), it was

observed that as soon as the cause for reasonable

apprehension disappears and the threat has either been

destroyed or has been put to route, there can be no occasion

to exercise the right of private defence.

8. The above position was highlighted in Rizan and Another

vs. State of Chhattisgarh, through the Chief Secretary, Govt. of

7 Chhattisgarh, Raipur, Chhatttisgarh (2003 (2) SCC 661), and

Sucha Singh and Anr. v. State of Punjab (2003 (7) SCC 643).

9. Merely because there was a quarrel and accused persons

claimed to have sustained injuries, that does not confer a

right of private defence extending to the extent of causing

death as in this case. Though such right cannot be weighed in

golden scales, it has to be established that the accused

persons were under such grave apprehension about the safety

of their life and property that retaliation to the extent done

was absolutely necessary. No evidence much less cogent and

credible was adduced in this regard. The right of private

defence as claimed by the accused has been rightly discarded.

10. The academic distinction between "murder" and

"culpable homicide not amounting to murder" has always

vexed the courts. The confusion is caused, if courts losing

sight of the true scope and meaning of the terms used by the

legislature in these sections, allow themselves to be drawn

into minute abstractions. The safest way of approach to the

interpretation and application of these provisions seems to be

8 to keep in focus the keywords used in the various clauses of

Sections 299 and 300.

11. In Virsa Singh v. State of Punjab (AIR 1958 SC 465)

Vivian Bose, J. speaking for the Court, explained the meaning

and scope of clause (3). It was observed that the prosecution

must prove the following facts before it can bring a case under

Section 300 "thirdly". First, it must establish quite objectively,

that a bodily injury is present; secondly, the nature of the

injury must be proved. These are purely objective

investigations. Thirdly, it must be proved that there was an

intention to inflict that particular injury, that is to say, that it

was not accidental or unintentional or that some other kind of

injury was intended. Once these three elements are proved to

be present, the enquiry proceeds further, and fourthly, it must

be proved that the injury of the type just described made up of

the three elements set out above was sufficient to cause death

in the ordinary course of nature. This part of the enquiry is

purely objective and inferential and has nothing to do with the

intention of the offender.

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12. The ingredients of clause "thirdly" of Section 300 IPC

were brought out by the illustrious Judge in his terse

language as follows:

"12. To put it shortly, the prosecution must prove the following facts before it can bring a case under Section 300 'thirdly';

First, it must establish, quite objectively, that a bodily injury is present;

Secondly, the nature of the injury must be proved; These are purely objective investigations.

Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended.

Once these three elements are proved to be present, the enquiry proceeds further and,

Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender."

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13. The learned Judge explained the third ingredient in the

following words (at page 468):

"The question is not whether the prisoner intended to inflict a serious injury or a trivial one but whether he intended to inflict the injury that is proved to be present. If he can show that he did not, or if the totality of the circumstances justify such an inference, then, of course, the intent that the section requires is not proved. But if there is nothing beyond the injury and the fact that the appellant inflicted it, the only possible inference is that he intended to inflict it. Whether he knew of its seriousness, or intended serious consequences, is neither here nor there. The question, so far as the intention is concerned, is not whether he intended to kill, or to inflict an injury of a particular degree of seriousness, but whether he intended to inflict the injury in question; and once the existence of the injury is proved the intention to cause it will be presumed unless the evidence or the circumstances warrant an opposite conclusion."

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14. These observations of Vivian Bose, J. have become locus

classicus. The test laid down by Virsa Singh case (supra) for

the applicability of clause "thirdly" is now ingrained in our

legal system and has become part of the rule of law. Under

clause thirdly of Section 300 IPC, culpable homicide is

murder, if both the following conditions are satisfied i.e. (a)

that the act which causes death is done with the intention of

causing death or is done with the intention of causing a bodily

injury; and (b) that the injury intended to be inflicted is

sufficient in the ordinary course of nature to cause death. It

must be proved that there was an intention to inflict that

particular bodily injury which, in the ordinary course of

nature, was sufficient to cause death viz. that the injury found

to be present was the injury that was intended to be inflicted.

15. Thus, according to the rule laid down in Virsa Singh case

(supra) even if the intention of the accused was limited to the

infliction of a bodily injury sufficient to cause death in the

ordinary course of nature, and did not extend to the intention

12 of causing death, the offence would be murder. Illustration (c)

appended to Section 300 clearly brings out this point.

16. Clause (c) of Section 299 and clause (4) of Section 300

both require knowledge of the probability of the act causing

death. It is not necessary for the purpose of this case to dilate

much on the distinction between these corresponding clauses.

It will be sufficient to say that clause (4) of Section 300 would

be applicable where the knowledge of the offender as to the

probability of death of a person or persons in general as

distinguished from a particular person or persons - being

caused from his imminently dangerous act, approximates to a

practical certainty. Such knowledge on the part of the offender

must be of the highest degree of probability, the act having

been committed by the offender without any excuse for

incurring the risk of causing death or such injury as aforesaid.

17. The above are only broad guidelines and not cast-iron

imperatives. In most cases, their observance will facilitate the

task of the court. But sometimes the facts are so intertwined

13 and the second and the third stages so telescoped into each,

that it may not be convenient to give a separate and clear cut

treatment to the matters involved in the second and third

stages.

18. The position was illuminatingly highlighted by this Court

in State of A.P. v. Rayavarapu Punnayya (1976 (4) SCC 382),

Abdul Waheed Khan alias Waheed and Ors. v. State of A.P.

(2002 (7) SCC 175) and Raj Pal and Ors. v. State of Haryana

(2006 (8) SCC 678).

19. It is to be noted that Heeralal has stated that the

appellant had assaulted both legs, thigh and hands of the

deceased with pharsa. He chopped both the legs of the

deceased who died instantaneously. Beerbali's (P.W.5)

evidence was also to similar effect.

20. It is nobody's case that the appellant had assaulted any

of the accused or that he had participated in the quarrel.

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21. Learned counsel for the appellant submitted that since

he was present at the place of occurrence, it is but natural on

the part of the accused appellant to assume that he may have

assaulted him. Mere presence of a person at the place of

quarrel is not sufficient to show that he had any intention to

cause any injury. In the instant case, even that intention is

not manifest and in any event, any intention to do an act

cannot be counteracted by actual assault. Even deceased was

not armed.

22. In the instant case, in a brutal manner the appellant had

chopped both legs of the deceased and with the weapon

caused other injuries on the body of the deceased. Above

being the position, there is no scope for interference in this

appeal. The appeal is dismissed.

................................J. (Dr. ARIJIT PASAYAT)

...............................J. (P. SATHASIVAM)

15 New Delhi, July 7, 2008

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